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Response from Charles M. Kester

Discussion Question: U.S. Drone Strikes Against American Citizens?

U.S. drone strikes against American citizens have been in the news for some time time now. Certainly Attorney General Eric Holder's admonition last week that the president has legal authority to order a targeted strike against an American citizen located within the United States has brought the discussion much closer to home. International terrorism, which often has roots or ties to religious fundamentalism, is the likely target of such proposed force. Is this exertion of executive power merely typical of contemporary civil rights & due process, or is it, as Senator Paul suggests, "an affront to the Constitutional due process rights of all Americans."

I noted the topic of this Liberty Roundtable discussion with interest. I offer three observations, which due to the immediacy of the topic, are fairly brief.

First, as I write this this, Senator Rand Paul is fresh off his “Mr. Smith Goes to Washington” version of the filibuster. The reaction to his efforts remains mixed, although I have to give Senator Paul his “props.” At 8 minutes short of 13 hours, Sen. Paul appears to be in the Top Ten all time filibusters (the pundits are putting him at No. 9). Regardless of one’s view of the merits of his arguments, Sen. Paul is to be commended for having the courage of his convictions. Since Senator Strom Thurmond made his infamous filibuster against civil rights in 1957, there have been relatively few actual “Mr. Smith” style filibusters. Sen. Alfonse D’Amato (a Democrat) filibustered a few “money” bills in the 1980s and 1990s. Wisconsin Senator William Proxmire (also, interestingly, a Democrat) filibustered a debt ceiling bill in the 1980s, but very few Senators have taken the relatively simple step of just standing up and making an argument, or reading the Declaration of Independence, or the telephone directory, etc. Senator Paul is to be commended for his initiative.

Second, while the reviews of Sen. Paul’s filibuster currently appear to be mixed, he had a point. Whether that point justified a filibuster or not, the pundits can debate. The point is that Sen. Paul objects to the U.S. Government killing people without due process. He effectively made that point, as this posting and the current media buzz seems to confirm.

Third, on the merits of the argument, the U.S. Government has no business killing people without due process (or for that matter, with due process, but that is a different issue). However, the real issue with the use of drones, which is our right to privacy, is largely obscured by the discussion about “killing.” The use of drones is fraught with civil rights and privacy concerns. With the current technology supporting drones roughly the size of a football, drones can go anywhere unless specifically limited by the law. With drones, it is not sufficient to take the traditional “I’m not doing anything wrong, so what do I care” attitude. The law has evolved in a way that essentially gives the government license to send drones wherever the government sees fit. Those drones can collect information from anywhere. There is no limit on what can be done with that information. At the founding of this nation, the right of privacy in the person was of paramount concern – it was memorialized in the Fourth Amendment. That notion of privacy is very much more expansive than the current anemic view. The Fourth Amendment may have gotten a bad rap during the “War on Drugs,” but the issue of drones is truly different matter and flatly contrary to the robust view of personal privacy that is protected by the Constitution . Benjamin Franklin said it best – those who would sacrifice liberty for security deserve neither. I don’t really want a drone filming through my bedroom window, and I am sure that my wife (who was not consulted in drafting this comment) would agree. In fact, I have a hard time thinking of anyone who would disagree, which makes it all the more confusing when our Government is throwing money around so that police departments can deploy these drones to spy on us. Lest you think that I am exaggerating, even my beloved state of Arkansas, not noted as an early adopter, is seeking federal grants for police drones. Sen. Paul was right – say no to drones.

Photo of Charles M. Kester

Author: Charles M. Kester

Managing Member, Kester Law Firm

Charles M. Kester is the managing member of the Kester Law Firm, with an active litigation practice in the areas of civil rights, labor and employment law, including religious discrimination and accommodation. He regularly appears before a wide range of state and federal agencies, as well as state and federal trial and appellate courts. Mr. Kester has published in legal journals and has lectured extensively on employment law issues in public and private employment. He is a member of numerous professional organizations and Bar Associations, including the National Employment Lawyers Association, and has served as an officer and Chair of the Labor and Employment Law Section of the Arkansas Bar Association. Mr. Kester served as lead trial and appellate counsel in Sturgill v. UPS, which was featured in the November/December 2006 and January/February 2009 editions of Liberty.

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